Brooke Sopelsa (CNBC) writes that “about 6,000 claims have now been filed against BP since its massive oil spill in the Gulf of Mexico, and hundreds of them have been filed by Robert Gordon, chief trial lawyer for Weitz & Luxemberg, on behalf of fishermen affected by the spill.” Gordon is quoted as saying: “It may be a generation before they’re able to go out and fish the way they were before.”

This raises an interesting question, more philosophical than legal: Do hunter-gatherers have a right to sue agriculturalists and industrialists for destroying their way of life? Under a Lockean system, it would seem, the answer is no. Hunter-gatherers have no “right” to the land they draw from and no "right" to anything that they have been accustomed to find there. Therefore, if a more advanced form of survival--namely, agricultural or industrial production--destroys that which they have previously taken for free, they have no claim to damages?

In today’s context, of course, the issue is obscured by government’s assertion that it owns unoccupied land, and is not merely sovereign over it. And the issue is completely muddled by the culture’s belief that the hunter-gatherer way of life is actually superior to and more human than agriculture and industry. Still, it would be interesting to hear arguments about what the legal situation would be in more purely Lockean world.

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